How Obama’s Harsh Whistleblower Laws Forced Snowden to Break the Law

Edward Snowden claimed he attempted to follow established channels to reveal the unlawful behavior of the NSA before becoming a fugitive and fleeing the country. Ironically, then Senator Barack Obama promised to protect whistleblowers from prosecution. Since he ran for President, Obama’s administration has gone after whistleblowers more aggressively than any other administration, and Edward Snowden was forced to follow a different route to reveal all the damaging information he has.

His campaign promised the American people their country would be morphed into a place where “federal employees [are empowered] as watchdogs of wrongdoing and partners in performance.” Part of his agenda as president — the then-candidate promised — would be to “strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government.” But once Obama moved into 1600 Pennsylvania Avenue, things took a turn for the worse.
Every year, the Intercept reports, the House Permanent Select Committee on Intelligence (HPSCI) receives “dozens” of whistleblower complaints.

“We receive whistleblower-type complaints both through the [Intelligence Community Inspector General] — which includes complaints filed through the Intelligence Community Whistleblower Protection Act — and via individuals who approach the committee directly,” Jack Langer, the communications director for Committee Chair Rep. Devin Nunes (R-CA), said. Despite adding that “dozens” make their way to the committee, detailed information on individual cases won’t be disclosed.

But in a three-page summary of an investigation into former National Security Agency contractor and whistleblower Edward Snowden, the HPSCI reported that in June 2013, “former [NSA] contractor Edward Snowden perpetrated the largest and most damaging public release of classified information in U.S.intelligence history.”

The report adds that, “[c]ontrary to his public claims that he notified numerous NSA officials about what he believed to be illegal intelligence collection, the Committee found no evidence that Snowden took any official effort to express concerns about U.S. intelligence activities-legal, moral, or otherwise-to any oversight officials within the U.S. Govemment, despite numerous avenues for him to do so.”

But these avenues have shown they do not see unconstitutional actions as “unlawful.” They also do not accept employee interpretations of what is right, legal, or moral.

According to the Intelligence Community Whistleblower Protection Act (ICWPA), intelligence community employees and contractors have “secure means” to raise “urgent” concerns to Congress. The complaint put forward by a “[whistleblower] needs to be about something serious or flagrant—legal abuse, perjury, or an illegal action,” but it should “not include differences of opinion concerning public policy matters.”

In other words, if the government considers the mass surveillance of American and foreign citizens to be lawful — despite experts’ conflicting findings — then whistleblowers who side with the experts are not granted the same protections.

According to Bradley Moss, a national security attorney who often represents whistleblowers, “[t]he majority of whistleblower complaints that are brought to the attention of the congressional intelligence committees are heard and addressed in relative obscurity.”

This is by design, he contends, precisely because “complaints generally involve classified information and the process permits the complaint to be heard without exposing the information itself to unauthorized individuals.” But when matters brought up by whistleblowers are both legitimate and ignored by their superiors, what happens?

Langer says that while the HPSCI receives “allegations of retaliation—both as the subject of a claim and following a claim,” Congress cannot “grant special statutory protection for intelligence community employees from reprisal for whistleblowing.”

The director for the Government Accountability project, Tom Devine, says many of these whistleblowers end up being left to their own devices as a result of their actions. He explained:

“The problem is that whistleblowers making most complaints proceed at their own risk. There are no independent due process protections for any intelligence community whistleblowers. And contractors don’t even have the right to an independent investigation unless there’s security clearance retaliation.”

In many cases, the Intercept notes, whistleblowers are unable to prove they’ve been retaliated against, making it difficult for them to feel safe by reporting their findings through “formal channels.” A case involving a Defense Information School employee who was unable to convince the Department of Defense Inspector General that retaliation took place after the employee reported a coworker for mishandling sensitive information helps illustrate the difficulties government whistleblowers experience.

Contractors like Snowden are faced with even tougher obstacles, since they “are not protected against retaliation, except when it concerns the loss of their security clearance.”

Even Bob Litt, the general counsel for the director of national intelligence and the intelligence community’s top lawyer, knows this much.

During a panel session at the American Bar Association’s 25th annual “Review of The Field of National Security Law,” Litt said protecting intelligence community contractors is “complicated.”

Despite U.S. law’s blind spots concerning contractors who “see something and say something,” the House Intelligence Panel added in its report that “laws and regulations in effect at the time of Snowden’s actions afforded him protection.” With the same panel claiming to receive “dozens” of whistleblower complaints each year without disclosing their findings to the public, it’s difficult to identify other cases that may have been similar to Snowden’s.

If we have no knowledge of what whistleblowers have complained about, government’s wrongdoings are largely swept under the rug.

Because Snowden decided to make his findings public, we are now aware of the NSA’s abuses of power, among other issues the former NSA contractor helped shed light on.

It’s interesting that the President who vowed to be the most transparent and also to protect whistleblowers, became a President and Administration that is fiercely secretive and aggressively pursues any disloyalty which includes whistleblowers.

It seems we all have the same thing to fear as Edward Snowden, and that’s an oppressive government hell-bent on its own continuation and perpetuation.